COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73469 STATE OF OHIO : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION JAMES SMIDDLE : : PER CURIAM : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-309308. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Diane Smilanick, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: James Smiddle, pro se No. 293-880 G.C.I. 2500 S. Avon-Belden Road Grafton, OH 44044 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs of counsel. Defendant-appellant, James Smiddle ( appellant ), appeals the decision of the Cuyahoga County Common Pleas Court which denied his motion for correction of sentence. For the reasons that follow, we affirm. The record reflects that a nine-count indictment was returned against appellant; eight counts for aggravated arson in violation of R.C. 2909.02 and one count of arson in violation of R.C. 2909.03. Each count contained two violence specifications for prior convictions of violence-related offenses. The transcript of the proceedings reveals that those counts of the indictment charging appellant with aggravated arson were nolled in exchange for a plea of guilty to the arson charge, amended to delete one of the two violence specifications. Nonetheless, the entry journalized by the trial court states, in part, as follows: On recommendation of prosecutor Count Nine is amended to delete violence specifications (F-3 indef). Thereupon, said defendant retracts his/her former plea of not guilty heretofore entered, and for plea to said indictment says he/she is guilty of aggravated arson, R.C. 2909.02 (F-3 indef) as amended in Count Nine of the indictment, which plea/pleas, on the recommendation of the prosecuting attorney is/are accepted by the court. (Emphasis added.) -3- Appellant was eventually sentenced to a three to ten year term of incarceration. In a nunc pro tunc entry journalized shortly thereafter, the trial court corrected its earlier entry to accurately reflect that appellant had pled guilty to arson in violation of R.C. 2909.03 rather than aggravated arson. The journal entry, nonetheless, continues to inaccurately reflect that the violence specifications were deleted. Taking advantage of this error, appellant moved the trial court to correct the sentence from an indefinite sentence to a definite sentence. This motion was denied. Appellant timely appeals, assigning the following error for our review: THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING APPELLANT'S MOTION FOR CORRECTION OF SENTENCE; THE MAXIMUM PENALTY FOR A THIRD DEGREE FELONY WITHOUT SPECIFICATIONS IS TWO (2) YEARS. In his sole assignment of error, appellant contends that the trial court erred in sentencing him to an indefinite sentence when, as stated in the court's journal entry, the arson charge was amended deleting the violence specifications. As a third-degree felony without violence specifications, appellant argues that the appropriate sentence is a definite sentence in accordance with R.C. -4- 2929.11(B)(6)1 and (D)2. The state, on the other hand, maintains that the trial court inadvertently stated in its journal entry that both violence specifications were deleted when, in fact, the transcript supports that only one of the specifications was deleted. As such, appellant appropriately received an indefinite sentence. We agree. The plea agreement, as explained by the prosecution, was as follows: PROSECUTOR: It's my understanding that the defendant will be entering a plea, your Honor, to Count 9 as amended to delete one violence spec. I suppose it's just a plusage (sic), in any event. As such, your Honor, that is a violation of Revised Code 2909.03 and is a felony of the third degree punishable by an indefinite term of incarcerationof two, two and a half, three, three to four those are minimums up to a maximum ten years, since it is an indefinite three. It also carries with it a maximum fine of $5,000. 1R.C. 2929.11(B)(6) provides: For a felony of the third degree, the minimum terms shall be two years, thirty months, three years, or four years, and the maximum term shall be ten years[.] 2R.C. 2929.11(D) provides, in part: Whoever *** pleads guilty to a felony of the third *** degree and did not, during the commission of that offense, cause physical harm to any person *** and who has not previously been convicted of an offense of violence shall be imprisoned for a definite term ***. -5- No threats or promises have been made by the State with regard to any of these anticipated pleas of guilty. If, in fact, he enters a plea of guilty to Count 9, the State of Ohio would nolle Counts 1 thru 8. Thank you very much, your Honor. Moreover, in its colloquy with appellant, the court stated: THE COURT: *** [H]ow do you plead to the ninth count of the indictment, arson, in violation of Revised Code 2909.03 with the amount of the physical damage being over $300 with the violence specification, one violence specificationdeleted, and with a violence specification, how do you plead? THE DEFENDANT: Guilty. THE COURT: All right. I feel that the defendant has voluntarily, intelligently and knowingly waived his rights applicable in Case Number 309308 to the ninth count of the indictment. I will accept the defendant's plea of guilty to arson in violation of Revised Code 2909.03 with the physical damage being more than $300 and with one violence specification in that case. The remaining Counts 1 thru 8 will be nolled. As can be surmised from the transcript of the proceedings excerpted above, the court's journal entry notwithstanding, only one of the two violence specifications was deleted. Thus, -6- appellant's reliance on R indefinite term of incarceration is disingenuous. o which he pled, appellant's sole assignment of error.C. 2929.11(G)3 is not well taken and is hereby overruled. 3R.C. 2929.11(G) provides, in part: No person shall be sentenced pursuant to division (B)(6) *** of this section to an indefinite term of imprisonment for a felony of the third *** degree unless the indictment, count in the indictment, *** contains a specificationas set forth in section 2941.143 of the Revised Code. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE, PRESIDING JUDGE JAMES D. SWEENEY, JUDGE MICHAEL J. CORRIGAN, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .